Staten Island Advance photoA federal judge has thrown out the conviction of a New Jersey man who ran Texas Hold âEm poker games out of his Travis store.

STATEN ISLAND, N.Y. -- Bluffing. Reading an opponent's body language, while masking yours. Calculating the number of face cards left in the deck.

All that psychology and strategizing proves the argument espoused for years by hard-core poker players on Staten Island and in Atlantic City casinos: That poker is more a game of skill than chance.

A federal judge agreed, and threw out the conviction of a New Jersey man who ran Texas Hold 'Em poker games out of his Travis store.

The Monday and Thursday night contests in a nondescript warehouse at 3741B Victory Blvd., where Lawrence DiCristina sold electric bikes, featured waitresses plying customers with free drinks and food. More than $30,000 changed hands over the course of some games, said prosecutors.

But beware before you deal the cards and ante up the chips. Brooklyn federal Judge Jack B. Weinstein's ruling doesn't prevent prosecution of illegal poker games under state law.

"The ability of players to influence game play distinguishes poker from the other games, such as sports betting (bookmaking), enumerated in the IGBA (Illegal Gambling Business Act)," the judge wrote, referring to the federal statute under which DiCristina was charged and convicted.

"That chance plays some role in the outcome of the game does not imply that poker is predominately a game of chance, rather than predominately a game of skill ... across a series of games -- in numbers that would be expected to be played in a local poker establishment -- the influence of skill becomes obvious and overwhelming," said Weinstein.

The federal IGBA law requires that chance predominate over skill, such as casino games like roulette, and was designed to attack organized crime by extending federal criminal jurisdiction over large-scale intrastate gambling businesses, he said.

There was no evidence here of money laundering, loan-sharking or organized crime connection, said the judge.

Weinstein also said no federal court has ruled directly on whether poker constitutes gambling as defined by the statute.

But it's a different story under New York state law, Weinstein said.

New York Penal Law defines illegal gambling as a game in which "the outcome depends in a material degree upon an element of chance."

"New York courts have long considered that poker contains a sufficient element of chance to constitute gambling under that state's laws," wrote Weinstein in a decision handed down Tuesday in Brooklyn federal court.

The judge's 120-page ruling, complete with statistical analysis, graphs and charts, scored big with the Poker Players Alliance. The Washington, D.C.-based poker advocacy group had filed a friend-of-the-court brief.

"Judge Weinstein's thoughtful decision recognizes what we have consistently argued for years: Poker is not a crime, it is a game of skill," said John Pappas, the group's executive director in a statement. "As the judge's opinion aptly notes, poker is an American pastime that is deeply embedded in the history and fabric of our nation, and his decision sets aside the notion that the vague laws render the game criminal."

DiCristina's lawyer, Kannan Sundaram, could not be reached Wednesday for comment.

A spokesman for Brooklyn federal prosecutors said the office is reviewing the decision and considering its options.

DiCristina, 33, of Matawan, was convicted last month of illegal gambling and conspiracy to operate an illegal gambling business. He faced up to 10 years in prison.

According to prosecutors and court papers, DiCristina and two others ran the poker games at DiCristina's business, Switch Electric Bikes, between December 2010 and May 2011. The shop, where he legally sold electric bicycles, is no longer there.

Court document said it generally cost between $100 and $300 to buy into a game. ¶

Games were typically played on Mondays and Thursdays and advertised via word of mouth and text-message.

The club contained two tables at which no-limit Texas Hold 'Em was played. A waitress served free food and drinks, and the action could last until 6 or 7 a.m., said court papers. The house took 5 percent of each pot, which was used to pay dealers, expenses for running the club and profits, court documents said.

DiCristina contended he hadn't broken any gambling laws, theorizing that poker is a game of skill rather than one of chance and that the IGBA statute didn't apply to it. While Weinstein denied DiCristina's motion to present that defense to the jury, he said he could make post-trial motions on it.

At a hearing, Dr. Randal D. Heeb, an economist, statistician and national poker player, testified in support of DiCristina.

He maintained poker differs from other forms of gambling, such as sports betting, because the player can rely on sophisticated skills, such as bluffing, the ability to read another opponent and varying their wagers, to change the game's outcome.

Heeb said "many people" make a living player poker and win consistently over time, but it is impossible to make a living and win consistently playing casino games such as roulette, where chance predominates. He said poker falls between chess, which he characterized as an almost pure game of skill, and roulette, which he called a pure game of chance.

Government expert Dr. David DeRosa, a non-poker player, contended skill can't predominate over luck in poker because so few players win money.

Heeb countered that only 10 to 20 percent of the players in any given game are good enough to win consistently.

Although there is some influence of chance in poker, the defense contended the game is predominately one of skill and the significance of skill increases dramatically as more hands are played.